The Appeal

The Appeal Page 23

During its first four months, the race between Sheila McCarthy and Ron Fisk had been markedly civil. Clete Coley had thrown his share of mud, but his general appearance and unruly personality made it difficult for voters to see him as a supreme court justice. Though he still received around 10 percent in Rinehart's polls, he was campaigning less and less. Nat Lester's poll gave him 5 percent, but that poll was not as detailed as Rinehart's.

After Labor Day, with the election two months away and the homestretch of the race at hand, Fisk's campaign took its first ugly step toward the gutter. Once on that course, it would not and could not turn back.

The tactic was one Barry Rinehart had perfected in other races. A mass mailing was sent to all registered voters from an outfit called Lawsuit Victims for Truth. It screamed the question "Why Are the Trial Lawyers Financing Sheila McCarthy?" The four-page diatribe that followed did not attempt to answer the question. Instead, it excoriated trial lawyers.

First, it used the family doctor, claiming that trial lawyers and the frivolous lawsuits they bring are responsible for many of the problems in our health-care system. Doctors, laboring under the fear of lawsuit abuse, are forced to perform expensive tests and diagnoses that drive up the cost of medical care.

Doctors must pay exorbitant premiums for malpractice insurance to protect themselves from bogus lawsuits. In some states, doctors have been driven out, leaving their patients without care. One doctor (no residence given) was quoted as saying, "I couldn't afford the premiums, and I was tired of spending hours in depositions and trials.

So I simply quit. I still worry about my patients." A hospital in West Virginia was forced to close after getting hit with an outrageous verdict. A greedy trial lawyer was at fault.

Next, it hit the checkbook. Rampant litigation costs the average household $1,800 a year, according to one study. This expense is a direct result of higher insurance premiums on automobiles and homes, plus higher prices for a thousand household products whose makers are constantly being sued. Medications, both prescription and over-the-counter, are a perfect example. They would be 15 percent cheaper if the trial lawyers didn't hammer their manufacturers with massive class action cases.

Then it shocked the reader with a collection of some of the country's zaniest verdicts, a well-used and trusted list that always sparked outrage. Three million dollars against a fast-food chain for hot coffee that was spilled; $110 million against a carmaker for a defective paint job; $ 15 million against the owner of a swimming pool that was fenced and padlocked. The infuriating list went on and on. The world is going crazy and being led by devious trial lawyers.

After breathing fire for three pages, it finished with a bang. Five years earlier, Mississippi had been labeled by a pro-business group as a "judicial hellhole." Only four other states shared this distinction, and the entire process would have been overlooked but for the Commerce Council. It seized the news and splashed it around in newspaper ads. Now the issue was worthy of being used again. According to the Lawsuit Victims for Truth, the trial lawyers have so abused the court system in Mississippi that the state is now a dumping ground for all sorts of major lawsuits. Some of the plaintiffs live elsewhere. Many of the trial lawyers live elsewhere.

They forum-shop until they find a friendly county with a friendly judge, and there they file their cases. Huge verdicts are the result. The state has earned a shady reputation, and because of this many businesses avoid Mississippi. Dozens of factories have packed up and left. Thousands of jobs are gone.

All thanks to the trial lawyers, who of course adore Sheila McCarthy and her pro-plaintiff leanings and will spend anything to keep her on the court.

The mailing ended with a plea for sanity. It never mentioned Ron Fisk.

An e-mail blast then sent the ad to sixty-five thousand addresses in the district.

Within hours, it had been picked up by the trial lawyers and sent to all of the MTA's eight hundred members.

Nat Lester was thrilled with the ad. As campaign manager, he preferred broad-based support from many groups, but the reality was that the only major donors to McCarthy were the trial lawyers. He wanted them angry, spitting nails, frothing at the mouth, ready for an old-fashioned bare-knuckle brawl. So far, they had given just under $600,000. Nat needed twice that, and the only way to get it was by throwing grenades.

He sent an e-mail to every trial lawyer, and in it he explained the urgent necessity of answering the propaganda as quickly as possible. Negative ads, both in print and on television, must be responded to immediately. Direct mail is expensive, but very effective. He estimated the cost of the Lawsuit Victims for Truth mailing at $300,000 (actual cost: $320,000). Since he planned to use direct mail more than once, he demanded an immediate infusion of $500,000, and he insisted on commitments by return e-mail.

His coded e-mail address would publish a running total of new contributions from trial lawyers, and until it reached the goal of $500,000, the campaign would remain virtually hamstrung. His tactic bordered on extortion, but then he was still, at heart, a trial lawyer, and he knew the breed. The mailing jolted their blood pressure to near-lethal levels. They loved to fight anyway, and the commitments would pour in.

While he manipulated them, he met with Sheila and tried to calm her. She had never been attacked before in such a manner. She was upset, but also angry. The gloves were off, and Mr. Nathaniel Lester was relishing the fight. Within two hours, he had designed and written a response, met with the printer, and ordered the necessary supplies. Twenty-four hours after the Lawsuit Victims for Truth's plea was sent by e-mail, 330 trial lawyers had committed $515,000.

Nat also went after the Trial Lawyers of America, several of whose members had made fortunes in Mississippi. He e-mailed the Lawsuit Victims for Truth's fulmination to fourteen thousand of its members.

Three days later, Sheila McCarthy counterpunched. Refusing to hide behind some silly group organized just to send propaganda, she (Nat) decided to send the correspondence from her own campaign. It was in the form of a letter, with a flattering photo of her at the top.

She thanked each voter for his or her support, and quickly ran through her experience and qualifications. She claimed to have nothing but respect for her opponents, but neither had ever worn the black robe. Neither, frankly, had ever shown any interest in the judiciary.

Then she posed the question: "Why Is Big Business Financing Ron Fisk?" Because, she explained in detail, big business is currently in the business of buying seats on supreme courts all over the country. They target justices like herself, compassionate jurists who strive for the common ground and are sympathetic to the rights of workers, consumers, victims injured by the negligence of others, the poor, and the accused.

The law's greatest responsibility is to protect the weakest members of our society.

Rich people can usually take care of themselves.

Big business, through its myriad support groups and associations, is successfully coordinating a grand conspiracy to drastically change our court system. Why? To protect its own interests. How? By blocking the courthouse door; by limiting liability for companies that make defective products, for negligent doctors, for abusive nursing homes, for arrogant insurance companies.

The sad list went on.

She finished with a folksy paragraph asking the voters not to be fooled by slick marketing. The typical campaign run by big business in these races gets very ugly.

Mud is their favorite tool. The attack ads would soon begin, and they would be relentless.

Big business would spend millions to defeat her, but she had faith in the voters.

Barry Rinehart was impressed with the response. He was also delighted to see the trial lawyers rally so quickly and spend so much money. He wanted them to burn money.

The high end of his projection was $2 million for the McCarthy camp, with 90 percent from the trial lawyers.

His boy Fisk could easily double that.

His next ad, again by direct mail, was a sucker punch that would quickly dominate the rest of the campaign. He waited a week, time for the dust to settle from the first exchange of jabs.

The letter came straight from Ron Fisk himself, on his campaign letterhead, with a photo at the top of the handsome Fisk family. Its ominous headline announced: "Mississippi Supreme Court to Rule on Gay Marriage."

After a warm greeting, Ron wasted no time in launching into the issue at hand. The case of Meyerchec and Spano v. Hinds County involved two gay men who wanted to get married, and it would be decided the following year by the supreme court. Ron Fisk-Christian, husband, father, lawyer-was adamantly opposed to same-sex marriages, and he would take this unshakable belief to the supreme court. He condemned such unions as abnormal, sinful, against the clear teachings of the Bible, and detrimental to society on many levels.

Halfway through the letter, he introduced to the fray the well-known voice of the Reverend David Wilfong, a national loudmouth with a huge radio following. Wilfong decried such efforts to pervert our laws and bend, yet again, to the desires of an immoral few. He denounced liberal judges who insert their own beliefs into their rulings. He called upon the decent and God-fearing people of Mississippi, "the heart and soul of the Bible Belt," to embrace men like Ron Fisk and, in doing so, protect their state's sacred laws.

The liberal-judge theme continued to the end of the letter. Fisk signed off with another promise to serve as a conservative, common sense voice of the people.

Sheila McCarthy read the letter with Nat, and neither knew what the next step should be. Her name was never mentioned, but then it really wasn't necessary. Fisk certainly wasn't accusing Clete Coley of being a liberal.

"This is deadly," Nat said, exasperated. "He has claimed this issue as his own, and to take it back, or even to share it, you have to pulverize homosexuals worse than he does."

"I'm not doing that."

"I know you're not."

"It is so improper for a member of the court, or one who aspires to be, to state how he or she will decide a future case. It's horrible."

"This is just the beginning, dear."

They were in the cramped storage room that Nat called his office. The door was shut, no one was listening. A dozen volunteers were busy in the adjacent room. Phones rang constantly.

"I'm not sure we answer this," Nat said.

"Why not?"

"What are you going to say? "Ron Fisk is being mean." "Ron Fisk is saying things he shouldn't." You'll come off looking bitchy, which is okay for a male candidate, but not for a female."

"That's not fair."

"The only response is a denial of your support for same-sex marriages. You would have to take a position, which-"

"Which I'm not going to do. I'm not in favor of these marriages, but we need some type of civil union arrangement. It's a ridiculous debate, though, because the legislature is in charge of making laws. Not the court."

Nat was on his fourth wife. Sheila was looking for husband number two. "And besides," she said, "how could homosexuals possibly screw up the sanctity of marriage any worse than heterosexuals?"

"Promise me you'll never say that in public. Please."

"You know I won't."

He rubbed his hands together, then ran his fingers through his long gray hair. Indecisiveness was not one of his shortcomings. "We have to make a decision, here and now," he said.

"We can't waste time. The smartest route is to answer by direct mail."

"What's the cost?"

"We can scale back some. I'd say two hundred thousand."

"Can we afford it?"

"As of today, I would say no. Let's revisit it in ten days."

"Agreed, but can't we do an e-mail blast and at least respond?"

"I've already written it."

The response was a two-paragraph message sent that day to forty-eight thousand e-mail addresses. Justice McCarthy issued a strong rebuke to Ron Fisk for pledging his vote on a case he was far away from hearing. Had he been a member of the court, he would have been chastised. Dignity demands that the justices keep matters confidential and refrain from any comment whatsoever about pending cases. In the one he mentioned, no briefs had been filed in the appeal. No arguments heard. Nothing was before the court as of this date.

Without knowing the facts or the law, how could Mr. Fisk, or anyone else for that matter, possibly decide on a final ruling?

Sadly, it was just another example of Mr. Fisk's woeful inexperience injudicial matters.

Clete Coley's losses were piling up at the Lucky Jack, and he confided this to Marlin late one night in a saloon in Under-the-Hill. Marlin was passing through, checking on the candidate, who seemed to have forgotten about the race.

"I have a great idea," Marlin said, warming up to the real reason for his visit.

"There are fourteen casinos on the Gulf Coast, big, beautiful, Vegas-style-"

"I've seen them."

"Right. I know the guy who owns Pirate's Cove. He'll put you up three nights a week for the next month, penthouse suite, great view of the Gulf. Meals are on the house.

You can play cards all night, and during the day you can do a bit of campaigning.

Folks down there need to hear your message. Hell, that's where the votes are. I can line up some audiences. You do the politicking. You've got a great speech and people love it."

Clete was visibly taken with the idea. "Three nights a week, huh?"

"More if you want it. You gotta be tired of this place."

"Only when I'm losing."

"Do it, Clete. Look, the folks who put up the money would like to see more activity.

They know it's a long shot, but they are serious about their message."

Clete admitted it was a great idea. He ordered more rum and began thinking of those beautiful new casinos down there.